California Court of Appeals, Third District, Butte
FOR PARTIAL PUBLICATION[*]
from a judgment of the Superior Court of Butte County, No.
CM039909 Michael P. Candela, Judge. Affirmed as modified.
Matthew Missakian, under appointment by the Court of Appeal,
for Defendant and Appellant.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Carlos A. Martinez, Stephen G.
Herndon, and Kevin M. Cornwall, Deputy Attorneys General, for
Plaintiff and Respondent.
Joseph Robert Sharpe, with several other men, went to someone
else's marijuana garden in the night to steal the plants.
Confronted by the owner, the men knocked the owner down and
fled. The owner pursued until one of the men brandished a
gun. A few minutes later, defendant and the other men rammed
the owner's truck. Convicted of robbery and sentenced to
state prison for six years, defendant appeals.
appeal, defendant asserts the judgment must be reversed based
on several arguments. We conclude those arguments have no
merit. Defendant also asserts that the trial
court abused its discretion in making the restitution award
because it awarded the victim both (1) the decrease in fair
market value of the truck resulting from the damage caused by
the ramming and (2) the cost to repair the truck. (See Pen.
Code, § 1202.4, subd. (f)(3)(A) [allowing court to use
fair market value method or cost of repair method to
determine restitution].) We conclude that the trial court
could not apply both methods because it resulted in a
windfall to the victim. We also conclude that the trial court
improperly calculated restitution by awarding the victim the
salvage value of the truck retained by the victim.
Smith lived on property in Butte County where he and two
other people grew medical marijuana in a garden enclosed by a
fence and gate. In the early morning hours of a day during
harvest season, Smith was sleeping in his camp trailer next
to the marijuana garden when he was awakened by noise from
the garden. In the darkness, he saw four or five men in the
garden. Smith went outside with his flashlight to the open
gate of the marijuana garden and yelled at the men. The men
in the garden ran out of the garden as Smith was running in,
and Smith was knocked to the ground. The men ran down the
long (about 200 feet) gravel driveway toward the road. Smith
recognized one of the men as defendant and pursued him down
saw that the people running down the driveway in the darkness
were carrying things, but he did not see marijuana in their
Smith was chasing defendant, another man, who was wearing a
mask, came toward Smith brandishing a gun, so Smith stopped
and walked quickly back up the driveway. The men who had been
in the garden got into a van at the end of the driveway.
got into his truck and drove to a local store. When he got
there, the van that had been at his property and a white car,
driven by the man who had brandished the gun at him at the
property, both drove toward him and collided with his truck,
disabling the truck. Smith fled to a ditch, and shots were
fired at him.
Smith returned to his property, he found that the chain on
the gate at the end of the driveway had been cut. He called
911, and a deputy sheriff responded. Eleven marijuana plants
had been cut down, and parts of the plants were scattered. A
pile of marijuana was outside the fence of the marijuana
garden. After the sun rose, Smith saw, in his words,
“little pieces of marijuana cascaded down [the]
driveway like bread crumbs.”
trial, defendant denied being present during the incident at
the marijuana garden, but none of his contentions on appeal
require us to relate the additional evidence presented of his
involvement in the incident.
district attorney charged defendant by information with one
count of robbery (Pen. Code, § 211), with an allegation
that defendant served a prior prison term (Pen. Code, §
667.5). A jury found defendant guilty of robbery, and the
trial court found true the prior prison term allegation.
trial court sentenced defendant to five years in state prison
for the robbery, with an additional year for the prior prison
term. The court ordered defendant to pay $23, 222.50 in
restitution to Smith for damage caused, including to
facts and procedural history are related in the Discussion as
they become relevant.
contends that the evidence was insufficient to support the
robbery conviction because the jury could not reasonably
infer that defendant and the other men were carrying
marijuana when Smith was knocked down and the gun was
brandished. He claims there is no evidence of the use of
force or fear when the marijuana was either taken or
asported. To the contrary, the evidence is sufficient to
support a reasonable inference that the men were carrying
marijuana when Smith was knocked down and the gun was
reviewing a sufficiency of evidence claim, the reviewing
court's role is a limited one. ‘ “The proper
test for determining a claim of insufficiency of evidence in
a criminal case is whether, on the entire record, a rational
trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.
[Citation.]” ' [Citations.]” (People v.
Smith (2005) 37 Cal.4th 733, 738-739.) We must accept
any reasonable inference the jury might have drawn from the
evidence. (People v. Rodriguez (1999) 20 Cal.4th 1,
requires force or fear in the taking of, or attempting to
flee with, the property of another from or in the immediate
presence of the victim. (Pen. Code, § 211; People v.
Pham (1993) 15 Cal.App.4th 61, 65-66.) Force and fear
are alternative elements. (Pen. Code, § 211.)
claims that, although there was evidence of the use of force
(knocking Smith down) and fear (in response to brandishing of
the gun), there was no evidence that defendant or his
coperpetrators were in the act of taking the marijuana or
attempting to flee with it when force was applied or fear was
caused. We disagree. The men were in the marijuana garden
cutting the marijuana. They had already stacked some of it
outside the garden. When Smith confronted them, they ran out
of the garden and down the driveway. In the darkness, Smith
could see that they had something in their hands, yet he
testified that he did not see marijuana in their hands. In
the morning, Smith saw that there were pieces of marijuana
scattered down the driveway. Despite Smith's inability to
identify what was in the men's hands as they were
fleeing, it was reasonable for the jury to infer from the
circumstances that the men had marijuana in their hands.
Based on this inference, there was sufficient evidence that
defendant and his coperpetrators used force and fear as they
took and fled with the marijuana, thus supporting a robbery
argues that “the circumstantial evidence suggested only
that the perpetrators had been cutting and piling up
marijuana to steal it, but from the moment Smith interrupted
the theft their only aim was to get away.” However, as
noted above, the circumstances also suggested that the
perpetrators were carrying marijuana down the driveway.
asserts that the sheriff's deputy did not see the
marijuana scattered down the driveway. But Smith testified
that he saw it.
also asserts that precisely where in the driveway the
marijuana was found was never established. But Smith
testified he saw “little pieces of marijuana cascaded
down [the] driveway like bread crumbs.”
claims that there was no evidence concerning how or when the
marijuana was deposited on the driveway. But a reasonable
inference from the evidence is that the marijuana on the
driveway was deposited there as the men fled.
argues: “It would be rank speculation to leap from the
evidence of marijuana pieces on the ground near the garden
gate and plant pile (where pieces would have naturally fallen
as the perpetrators hacked down 11 plants and their bamboo
framing and piled up the marijuana) to the conclusion that
some marijuana bits on the ground must have landed there
because the perpetrators, in their rush to flee after being
interrupted by Smith, were attempting to carry away marijuana
but dropped some.”
argument does not give the evidence its due. Smith testified
that there were pieces of marijuana scattered down the
driveway. That there were also marijuana pieces by the pile
of marijuana does not mean that the jury was constrained to
believe that the spread of marijuana was limited to the pile
by the garden or immediately around it.
the jury could reasonably infer that the perpetrators were
carrying marijuana as Smith confronted them and chased them
down the driveway, the evidence was sufficient to support the